Of the handful of Supreme Court hopefuls said to be on President Obama’s short list, Elena Kagan was thought by the administration to be one of the safer picks: much less outspoken ideologically, and able throughout her career to swim among conservatives and liberals alike. That reasoning may have paid off on day one: GOP senators have been congratulatory, and in some cases positive, about her nomination. But, as is common for the minority during Supreme Court fights, they are leaving themselves plenty of room to revisit their position, if and when they decide to turn the debate over the nomination into a full-bore political fight.
Take for instance Republican Whip Jon Kyl, who cast doubt on the likelihood that Republicans will obstruct Kagan’s confirmation, telling reporters this afternoon, “there won’t be a Republican position. It’s hard for me to see–though we have to look at all her record–that there would be grounds for filibustering her nomination.”
Without endorsing her, Sen. Olympia Snowe (R-ME) called Kagan a ‘strong candidate. “I appreciate that White House Chief of Staff Rahm Emanuel called me this morning to inform me of the President’s selection,” Snowe said in a statement. “Solicitor General Elena Kagan appears to present strong intellectual credentials and, as the process moves forward, I look forward to learning more about her experience and expertise, and to meeting with her to discuss a variety of issues, including how she would characterize her judicial philosophy.”
And Sen. Lindsey Graham (R-SC), who has been praising Kagan to reporters for weeks, also issued a positive statement.
But that’s just one side of the coin. Just after downplaying the possibility of a filibuster, Kyl listed a series of bones the GOP will pick with her. “Different members will have different views about the importance of her position on military recruiting, about the relative lack of experience, and about information we don’t yet have relative to her service in the Clinton administration,” he said.
Senate Republican Leader Mitch McConnell went further still, telling ABC News, “It’s way too early to be making a decision about the issue of whether there should be a 60 vote threshold on the nominee.”
For the uninitiated, this is a common opening move–the King’s Pawn of Supreme Court fights. It gives Republicans the flexibility to decide in the days and weeks ahead whether they want to throw everything in their arsenal at her, or to allow for a relatively smooth confirmation process.
The fact of the matter is, Kagan is overwhelmingly likely to be confirmed in the end. Thus far, only one senator–James Inhofe (R-OK)–has announced his opposition.
But Republicans understand the political value in drawing out a Supreme Court fight, even when the nominee isn’t overwhelmingly objectionable to them. And perhaps the most telling sign of where Republicans plan to take this fight comes from Sen. Jeff Sessions (R-AL), the ranking member on the Judiciary Committee where Kagan will have her first hearing. Sessions raised a series of objections to Kagan, calling her lack of judicial experience “troubling,” and in an appearance on CNN earlier today, he called her opposition to allowing the military to recruit on the Harvard campus “unacceptable.”
That may not, in the end, be a harbinger. But just because President Obama didn’t select the most liberal nominee on his shortlist doesn’t mean he disarmed the opposition in any meaningful way.
